Case: 19-50262 Document: 00515181104 Page: 1 Date Filed: 10/30/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-50262 October 30, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARIO PALACIOS-CORDERO, also known as Jesus Rodriguez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:18-CR-3190-1
Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
Mario Palacios-Cordero appeals the 57-month, within-guidelines
sentence and three-year term of non-reporting supervised release imposed
following his guilty plea conviction for illegal reentry into the United States.
He argues that the enhancement of his sentence pursuant to 8 U.S.C.
§ 1326(b)(1), which increased the maximum term of imprisonment to 10 years,
is unconstitutional because of the treatment of the provision as a sentencing
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 19-50262 Document: 00515181104 Page: 2 Date Filed: 10/30/2019
No. 19-50262
factor rather than as an element of a separate offense that must be proved to
a jury beyond a reasonable doubt. He concedes that the issue of whether a
sentencing enhancement under § 1326(b) must be alleged in the indictment
and proved to a jury is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998). However, he seeks to preserve the issue for possible Supreme
Court review because, he argues, subsequent Supreme Court decisions indicate
that the Court may reconsider this issue.
In Almendarez-Torres, 523 U.S. at 239-47, the Supreme Court held that
for purposes of a statutory sentencing enhancement, a prior conviction is not a
fact that must be alleged in an indictment or found by a jury beyond a
reasonable doubt. We have held that subsequent Supreme Court decisions did
not overrule Almendarez-Torres. See United States v. Wallace, 759 F.3d 486,
497 (5th Cir. 2014) (considering the effect of Alleyne v. United States, 570 U.S.
99 (2013)); United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir.
2007) (considering the effect of Apprendi v. New Jersey, 530 U.S. 466 (2000)).
Thus, Palacios-Cordero’s argument is foreclosed.
Accordingly, the Government’s motion for summary affirmance is
GRANTED; the Government’s alternative motion for an extension of time to
file a brief is DENIED; and the judgment of the district court is AFFIRMED.
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